State ex rel. Toedebusch Transfer, Inc. v. Public Service Commission

• Decision Date: 10 February 1975
• Docket Number: No. 58674,58674
• Citation: 520 S.W.2d 38
• Parties: STATE of Missouri ex rel. TOEDEBUSCH TRANSFER, INC., et al., and Intervenor-Relators, Relators, v. PUBLIC SERVICE COMMISSION of Missouri et al., and Intervenor-Respondents, Respondents.
• Court: Missouri Supreme Court

Page 38

520 S.W.2d 38

STATE of Missouri ex rel. TOEDEBUSCH TRANSFER, INC., et al and Intervenor-Relators, Relators, v. PUBLIC SERVICE COMMISSION of Missouri et al., and Intervenor-Respondents, Respondents.

No. 58674.

Supreme Court of Missouri, En Banc.

Feb. 10, 1975.

Rehearing Denied March 10, 1975.

Herman W. Huber, Thomas J. Downey, Jefferson City, for relators.

Wentworth E. Griffin, Frank W. Taylor, Jr., William P. Whitaker, Reeder, Dysart & Taylor, Kansas City, for named intervenors-relators.

Kretsinger & Sapp, Tom B. Kretsinger, Warren H. Sapp, Kansas City, for intervenors-relators: Bethany Express, Inc., W. G. Carter, d/b/a W. G. Carter Truck Service, Philipp Transfer Lines, Inc., Philipp Transit Lines, Inc. and Richmond Transfer, Inc.

Harry Wiggins, Gen. Counsel, Michael K. McCabe, First Asst. Gen. Counsel, Michael F. Pfaff, Asst. Gen. Counsel, Jefferson City, for respondent, Missouri Public Service Commission.

Lashly, Caruthers, Thies, Rava & Hamel, Michael C. Walther, Albert J. Stephan, Jr. St. Louis, attorneys for intervenors-respondents Marvin E. Van Noy, d/b/a Flat River-Farmington Express, James L. Charlton, d/b/a DeSoto Express, Red Line Express, Inc., and Herbert J. McClary, d/b/a H & M Pony Express.

Lilley & Cowan, William J. Roberts, Gary A. Love, Springfield, for intervenors-respondents William W. Parnell, Jr. et al.

HENLEY, Judge.

This is an original proceeding in prohibition commenced in the court of appeals, Kansas City district, in which relators and intervenor-relators (hereinafter referred to collectively as Relators) seek to prohibit respondent Public Service Commission of Missouri (hereinafter referred to as Commission to distinguish this respondent from the intervenor-respondents) from taking any action (1) to authorize certain motor carriers who had operated freight-carrying vehicles registered and licensed for a gross weight of 6000 pounds or less to operate vehicles licensed for a gross weight of 9000 pounds or less; (2) to issue certificates of convenience and necessity to said motor carriers upon their application without proof that public convenience and necessity would be served thereby. Some of the carriers operating vehicles licensed for a gross weight of 6000 pounds or less intervened as repondents and will be referred to as the Respondents. The court of appeals made its provisional rule, theretofore issued, absolute in a decision from which two of the five judges sitting dissented and certified that they deemed the majority opinion to be contrary to previous decisions of this court and the court of appeals. Accordingly, the case was transferred to this court ¹ and we decide it as though it had originated here. State ex rel. Schneider's Credit Jewelers, Inc. v. Brackman, Judge, 272 S.W.2d 289 (Mo. banc 1954). We discharge the provisional rule.

Relators' contentions are, in general, that the Commission does not have jurisdiction to authorize Respondents to operate vehicles licensed for a gross weight of 9000 pounds or less or to issue certificates of public convenience and necessity to them under authority of § 390.030, ² as amended, because (1) there is no statutory authority for the licensing of vehicles of that specific weight; and (2) § 390.030 is invalid for the reasons (a) the procedure by which it was adopted violated provisions of the Missouri constitution, and (b) if legally adopted, its provisions are repugnant to Chapter 390, and violate due process, equal protection and other guarantees of the state and federal constitutions. The Commission and the Respondents contend that the Commission has jurisdiction and that prohibition will not lie.

Relators are common carriers engaged in the transportation by motor vehicle of property or passengers for hire upon the public highways of this state under authority of certificates of public convenience and necessity issued by the Commission.

As previously indicated, Respondents are carriers of freight for hire in limited areas of the state who (1) on January 1, 1971, and prior thereto, operated motor vehicles licensed for a gross weight of 6000 pounds or less ³ and were exempt under authority of § 390.030(8) from regulation by, and did not have certificates of convenience and necessity from, the Commission; and who, (2) after an amendment of § 390.030 ⁴ by the general assembly effective September 28, 1971, applied for certificates of public convenience and necessity authorizing the operation of vehicles licensed for a gross weight of 9000 pounds or less and, with the permission of the Commission, operated vehicles licensed for that gross weight while their applications for certification were pending.

Chapter 390 provides for the regulation of motor carriers and vests certain powers and authority with respect thereto in the Commission. Section 390.030 provides for the exemption of certain vehicles from the provisions of that chapter. As indicated, the general assembly amended § 390.030 in 1971. The amendment created two subsections. Subsection 1 now embodies all of what were formerly subdivisions (1) through (12), with the exception of the last clause of subdivision (8), relative to vehicles of driveaway operators. This clause was carried over into subsection 2 ⁵ of amended § 390.030 and to it there was added: 'vehicles licensed in conformity with the provisions of Chapter 301, RSMo. for a gross weight of nine thousand pounds or less * * *', with a proviso authorizing the issuance of certificates of convenience and necessity for the latter vehicles under specified conditions.

Chapter 301, referred to in § 390.030, provides for the registration and licensing of motor vehicles. Section 301.057 ⁶ provides for the payment of an annual registration fee for property-carrying commercial motor vehicles based on gross weight. The first three of the thirteen graduated weight categories (running from '6,000 pounds and under' to 'over 72,000 pounds') and the license fee charged for each weight are as follows:

We note that there is no separate gross weight category and corresponding license fee specified in § 301.057 for vehicles of a gross weight of 9000 pounds or less. Several bills were introduced in the first and second regular sessions of the Seventy-sixth General Assembly to amend both §§ 301.057 and 301.058 so that they would provide a 9000 pound gross weight category and license fee but all failed of passage. We also note, however, that by an amendment of § 301.030, ⁷ the director of revenue was authorized to '* * * issue registration and license plates for a nine thousand (9,000) pounds gross weight for property carrying commercial motor vehicles * * *, upon payment of the fees prescribed for twelve thousand (12,000) pounds gross weight as provided in * * * section 301.057.'

In November, 1971, the chief enforcement officer of the Commission issued a memorandum to its inspectors regarding the 1971 amendment of § 390.030 in which it was stated that '* * * until such time as the Legislature establishes a 9,000 lb. license bracket, the pony express operators who apply for a 'grandfather' certificate will be allowed to carry a maximum gross of 9,000 pounds on a 12,000 pound license.' Upon receipt of applications for such 'grandfather' certificates the Commission's secretary issued letters to each applicant stating that '(u)ntil such a time as a license bracket of '9,000 pounds or less' is established, any such vehicle must be registered in the 6,001 to 12,000 pound bracket in order to be duly licensed under the provisions of Chapter 301 RSMo.'

Eighty-one applications for 'grandfather' certificates were filed with the Commission within six months after September 28, 1971 (effective date of 1971 amendment of § 390.030). At the end of that time period the Commission published a notice identifying these 81 applicants in which it was stated, in substance, that since no provision was made in the amendment of § 390.030 for a public hearing none would be held, except in instances where there is opposition by an interested party to the issuance of certificates of convenience and necessity to these applicants; that anyone having reason to protest the issuance of such a certificate may do so, stating reasons; and, that if it appeared that reasonable grounds existed for holding a hearing, a date therefor would be set and the interested parties notified.

Sometime before May 1, 1972, Relators filed formal protests to each of the 81 applications and requested that the Commission require strict proof of the applications, and that Relators be afforded the opportunity to appear and cross-examine witnesses of Respondents and present evidence. The grounds for objection were, in substance, that the services being furnished by Relators as Commission-regulated carriers would be adversely affected thereby; that the Commission was without jurisdiction to grant the applications; and that there were constitutional infirmities in the 1971 amendment of § 390.030 and in the Commission's procedure in connection therewith.

On October 4, 18 and 26, 1972, the Commission, without hearing Relators' protests, issued certificates of convenience and necessity to a total of 51 of these applicants, the first and second group of certificates being effective December 1 and the third group effective December 15, 1972. ⁸ On November 15, 1972, Relators filed motions to consolidate these 51 cases and to extend the effective dates of all to December 15. These motions were overruled on November 22, 1972, and two days later Relators filed in the court of appeals their petition for the writ of prohibition.

We note at the outset that the Commission admitted in its return that, as alleged by Relators, it had exceeded its jurisdiction in issuing letters to Respondents authorizing them to provide service using vehicles licensed for a gross weight of 9000 pounds or less pending determination of their applications for certificates of convenience and necessity,...